The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Defendant's Motion for Summary Judgment (Doc. 31). Plaintiff timely filed a Response. (Doc. 37). Defendants timely filed a Reply. (Doc. 38). The Motion for Summary Judgment pertains to the Complaint's remaining Counts, which are Counts 1, 8, and 9.*fn1 The Court held a hearing on the merits ("the hearing") on August 3, 2009 and took the matter under advisement. (Doc. 49).
Plaintiff filed this matter pursuant to 42 U.S.C. § 1983. In Count 1, Plaintiff asserts a deprivation of his Eighth Amendment rights through exposure to excessively cold conditions during his incarceration at Menard Correctional Center in December 2004. (Docs. 1 and 9). In Count 8, Plaintiff claims that Defendants unconstitutionally retaliated against him by (a) exposing him to excessive cold conditions in December 2004; (b) refusing to allow him commissary privileges to which he was entitled; (c) damaging certain items of his personal property; and (d) refusing to process his grievances. The retaliation was allegedly for his filing of grievances and because of a lawsuit he filed against officials at Menard Correctional Center in 1998. (Docs. 1 and 9). In Count 9, Plaintiff alleges that Defendants engaged in a conspiracy to retaliate against him for the lawsuit and grievances referred to in Count 8 by (a) exposing him to excessive cold conditions in December 2004; (b) refusing to allow him commissary privileges to which he was entitled; (c) damaging certain items of his personal property; (d) physically abusing him; and (e) refusing to process his grievances. For the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment.
II. Dismissal of Count 5 and Certain Defendants Pursuant to Federal Rule of Civil Procedure 4(m)
Before proceeding to the merits of the Defendants' Motion for Summary Judgment, the Court must take up the issue of Plaintiff's failure to serve certain defendants. Count 5*fn2 of the Complaint, which survived the Court's initial screening process pursuant to 28 U.S.C. § 1915(a), was a claim of excessive force against a person identified only as "Officer Maue." Despite two attempts by the Federal Marshals (Docs. 11 and 14), "Officer Maue" was never served with the waiver of service forms or the Complaint nor did he or she waive service. On the same two attempts at service, two other persons Plaintiff identified as Officer White and Officer Cowan, who are both named in Count 9, were not served with the waiver of service forms or the Complaint. Neither of those persons waived service. Finally, Plaintiff identified one defendant as only "John Doe."
Plaintiff failed to request any further action to attempt service of the Complaint after the second set of waiver of service forms for Officers Maue, Cowan and White was returned un-executed on May 21, 2007. Defendants' counsel notified Plaintiff at his deposition on August 1, 2008 that some of the persons named as defendants in the Complaint had not been served. (Doc. 31-2, p. 38). Plaintiff failed to request any further action regarding service following that notification. The Court notes that Defendants' counsel stated at the hearing held August 3, 2009 that Defendant "Maue" and "Cowan"were never served with the Complaint. Plaintiff made no response to that assertion and has not since requested any action be taken to serve Maue and Cowan. Plaintiff also failed to ever provide the Court or the Marshals with the actual identity of "John Doe" despite receiving notice that such identification was necessary if that person was to be served. (Doc. 9).
Rule 4(m) provides that "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time." FED.R.CIV.P.4(m). While the rule generally requires notice before an action is dismissed pursuant to Rule 4(m), the purpose of such notice is to give the plaintiff an opportunity to show good cause for the failure.
In the case at bar, the Court finds that Plaintiff cannot show good cause and that he had actual notice of his failure to serve Defendants. Plaintiff knew or should have known in May 2007 that the Marshall twice attempted service on Maue, Cowan, and White but failed because of inadequate identification. Plaintiff then was directly notified by counsel for Defendants in August 2008 and August 2009 that he had not served some of the persons named in his Complaint. In both cases, Plaintiff failed to take any action or request any assistance to ensure service of process. Plaintiff also failed to identify the person identified as "John Doe." Under those circumstances, Plaintiff cannot show good cause and notice pursuant to Rule 4(m) would serve no useful purpose. Accordingly, the Court DISMISSES, WITHOUT PREJUDICE, Count 5 of the Complaint and those persons identified as "John Doe," "Officer Maue," "Officer Cowan," and "Officer White."
III. Failure to Exhaust Administrative Remedies
At issue in this case are a series of grievances, which Plaintiff claims one or more Defendants thwarted him from exhausting. Defendant Reardon served as a counselor at Menard Correctional Center during the relevant time period, as did Defendant Summers. (Doc. 31-2, pp. 19 & 23). The first set of grievances at issue, which Plaintiff submitted to Defendant Reardon, are as follows: (1) December 14, 2009 for cold conditions; (2)December 28, 2004 alleging "Officer White" hit Plaintiff in the stomach with a juice carton; (3) February 9, 2005 for being denied commissary on February 5, 2005; and (4) April 25, 2005 for an alleged assault by an unidentified officer. (Doc. 37-2, pp. 13-19). The second set, which Plaintiff avers he submitted to Defendant Summers , are as follows: (1) June 3, 2005 for (a) damage to Plaintiff's personal property; (b) the alleged assault in April; and (c) an alleged assault by "Officer Maue" in May 2005; and (2) July 2, 2005 for (a) counselor Reardon's refusal to respond to Plaintiff's grievances to him; and (b) the denial of commissary privileges by "Officer Cowan" and Defendant Waller in May 2005. (Doc. 37-2, pp. 13-19).
Plaintiff's status as an inmate subjects his claims to the provisions of the Prisoner Litigation Reform Act ("PLRA"). That statute states, in pertinent part, that "no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). The burden of proof on the issue of exhaustion lies with Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir 2005). The Seventh Circuit, however, requires strict adherence to the PLRA's exhaustion requirement. Doe v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting "[t]his circuit has taken a strict compliance approach to exhaustion."). In addition, exhaustion must occur before the suit is filed. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). "Plaintiff cannot file suit and then exhaust his administrative remedies while the suit is pending." Id. Finally, "[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison administrative rules require.". Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2005).
As an inmate confined by the Illinois Department of Corrections, Plaintiff was required to follow the regulations contained in the Illinois Department of Correction's Grievance Procedures For Offenders ("grievance procedures") to properly exhaust his claims. 20 Ill. Administrative Code §504.800 et seq. The grievance procedures first require inmates to speak with their counselor about their complaint. 20 Illinois Administrative Code § 504.810(a). If the inmate feels the counselor does not resolve the issue, the inmate must file a grievance form directed to the Grievance Officer within 60 days of the incident. Id.The grievance form must: contain factual details regarding each aspect of the offender's complaint, including what happened, when, where, and the name of each person who is subject of or who is otherwise involved in the complaint. The provision does not preclude an offender from filing a grievance when the names of individuals are not known, but the offender must include as much descriptive information about the individual as possible.
20 Illinois Administrative Code 504.810(a)(b). "The Grievance Officer shall [then] consider the grievance and report his or her findings and recommendations in writing to the Chief Administrative Officer . . . [who] shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible under the circumstances." 20 Ill. Administrative Code §504.830(d). The Chief Administrative Officer is the highest ranking official at the corrections facility. 20 Ill. Administrative Code §504.802.
If the inmate is not satisfied with the Chief Administrative Officer's response, he or she can file an appeal with the Director through the Administrative Review Board ("ARB"). The grievance procedures specifically state, "[i]f after receiving the response of the Chief Administrative Officer, the offender still feels that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in writing to the Director within 30 days after the date of the decision. Copies of the Grievance Officer's report and the Chief Administrative Officer's decision should be attached." 20 Ill. Administrative Code §504.850(a). "The Administrative Review Board shall submit to the Director a written report of its findings and recommendations." 20 Ill. Administrative Code §504.850(e). "The director shall review the findings and recommendations of the Board and make a final determination of the grievance within 6 months after receipt of the appealed grievance, where reasonably feasible under the circumstances. The offender shall be sent a copy of the Director's decision." 20 Ill. Administrative Code §504.850(e)(f).
An inmate may request a grievance be handled as an emergency by forwarding the grievance directly to the Chief Administrative Officer. 20 Ill. Administrative Code §504.840. The Chief Administrative Officer must evaluate the grievance to determine if there is a substantial risk of imminent personal injury or other serious or irreparable harm and respond to the grievance indicating what action will be taken. 20 Ill. Administrative Code §504.840.
Defendants maintain that Plaintiff did not exhaust the administrative grievance process regarding the grievances at issue prior to bringing suit. Defendants point out that even if Defendants Reardon and Summers failed to directly respond to some or all of Plaintiff's grievances, the fact remains that Plaintiff failed to take up those unresolved grievances with the Grievance Officer as required by the regulation. The Court agrees.
Plaintiff argued at the hearing that he could not take the grievances to the Grievance Officer until Counselors Reardon and Summers responded. Plaintiff points to another grievance he filed in 2008 which he submitted to the Grievance Officer. (Doc. 37-2, p. 19). That grievance reflects that the Grievance Officer returned based on the following pre-printed answer on the form: "Issue needs to be discussed with your counselor for possible solution / need to have counselor provide a response." (Doc. 37-2, p. 19). The Court finds Plaintiff's citation to this form unavailing. That form is dated August 8, 2008, which is years after the events relevant to the case at bar. The fact that this Grievance Officer returned this particular grievance in 2008 has no bearing on the events in 2004-2005. Moreover, it is not clear from the face of the 2008 grievance that Plaintiff discussed the issue with his counselor at all, which would be a legitimate reason under the Administrative Code to reject his written grievance.
Nowhere in the record is there evidence that Plaintiff ever pursued the prescribed process for the grievances at issue as mandated by the Administrative Code. There are no records of him ever taking any of the grievances at issue in the case to a Grievance Officer. Rather, it reflects that for a few of the grievances he attempted to skip over the Grievance Officer and proceed directly to the Administrative Review Board. (Doc. 37-2, p. 18). There is also no record that Plaintiff ever sent a grievance to the Chief Administrative Officer at Menard, who could have treated his grievances, such as the cold conditions, as an emergency and responded accordingly. Thus, the Court finds that Plaintiff failed to exhaust the Administrative Grievance Process for the grievances at issue in this case, including those concerning the unserved/unnamed Defendants discussed above.*fn3 However, even if that is not the case, Plaintiff's claims still fail because the record reflects that Defendants are entitled to summary judgment.*fn4
III. Summary Judgment Standard
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In reviewing a summary judgment motion, this Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Celex Group, Inc. v. Executive Gallery, Inc., 877 F. Supp. 1114, 1124 (N.D. Ill. 1995). This Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Summary judgment is appropriate if a party fails to make a showing of an essential element of his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings; rather, he must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accordStarzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Summary judgment is proper if a party to fails to make a showing supporting the existence of an essential element of his claim.
A. Count 1: Eighth Amendment Violation: Excessively Cold Conditions
In Count I, Plaintiff claims that in December 2004 Defendants Smith-Vasquez, Waller, McDaniel, Reardon, and Spiller deliberately subjected him and other inmates in the North-1 Protective Custody Unit at Menard Correctional Center to excessively cold conditions. Prison officials are obliged by the Eighth Amendment to provide humane conditions of confinement. U.S.CONST. amend. VIII; Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.E.2d 811 (1994)). Prisoners are entitled to adequate shelter, which includes protection from "extremecold." Murphy v. Walker, 51 F.3d 714, 721 (7th Cir. 1995); Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). That said, prisoners do not have a constitutional right to live in comfort. Id.
In a conditions of confinement case, an Eighth Amendment violation occurs only where the harm imposed by the conditions of confinement objectively was"sufficiently serious" to deprive the prisoner of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.E.2d 811 (1994)). To assess whether cold cell temperatures are "sufficiently serious," courts in the 7th Circuit consider (1) the severity of the cold; (2) its duration; (3) whether the prisoner has alternative means to protect himself from the cold; (4) the adequacy of such alternatives; and (5) whether the prisoner must endure other uncomfortable conditions in addition to the cold. Dixon, 114 F.3d at 644. Just because low temperatures force a prisoner to bundle up during the winter does not mean that the prison's conditions' violate the Eighth Amendment. Id.
In addition to the objective "sufficiently serious" condition, it must be shown, subjectively, that the prison official(s) acted with "deliberate indifference" to the prisoner's health or safety. Farmer, 511 U.S. at 834; Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994). "Deliberate indifference" means that the prison officials "each knew that [the prisoner] faced a substantial risk of serious harm, and yet disregarded that risk by failing to take reasonable measures to address it." Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008). A prison official that takes reasonable steps to prevent harm to a prisoner cannot be held liable for subsequent injuries, even if the harm is not averted.Bagola v. Kindt, 131 F.3d 632, 646 (7th Cir. 1997). "Deliberate indifference" means something more than mere negligence, but something less than intentional conduct. Del Raine, 32 F.3d at 1031-1032. A prison official that does not know about the harm or cannot do anything about it, is not "deliberately indifferent" for failing to act.Del Raine, 32 F.3d at 1038. Moreover, if the harm is remote and not immediate, then the suit fails. Id.
Inhis affidavit, (Doc. 37-2, pp. 13-19), Plaintiff states that from December 8, 2004 until December 29, 2004, when he was placed in segregation, the heat "stop[ped] working" in the North-1 Protective Custody Unit. (Doc. 37-2, 13-15). Plaintiff also avers that directly across the hall from his cell was a door leading from the Protective Custody Unit to the yard outside. (Doc. 37-2, p. 13). According to Plaintiff's affidavit, that door allowed cold air to come indoors because of gaps around the bottom, top, and sides of the door. (Doc. 37-2, p. 13). Within a "couple of days," he avers that it became "excessively cold" in his cell. (Doc. 37-2, p. 13). Specifically, his affidavit reflects that he was "so cold" in his cell that wearing his clothing and coat did not "warm Plaintiff enough." (Doc. 37-2, p.14). Plaintiff further states that as a result of the cold temperatures, he contracted a common cold, but that he went to sick call. (Doc. 37-2, p. 14). At the hearing, he acknowledged that on sick call he received treatment for his cold.
Plaintiff also filed affidavits from fellow prisoners supporting his claim of cold conditions in the North-1 Unit at Menard in December 2004. (Doc. 37-2, pp. 8-12.) Edward Hanks, avers that it was cold enough in his cell in December that he "had to wear winter clothing." (Doc. 37-2, p. 12). Dean Davis states that in December 2004 "it was so cold in my cell that I had to wear winter clothing and I was still too cold." (Doc. 37-2, p. 10.) David Williams avers that in December 2004 "I was so cold that I had to wear long johns and my sweat suit on top of them, plus my socks, skull cap, [and] gloves while inside my cell. I also had to sleep in all those items in order to stay warm." (Doc. 37-2, p.8). Williams also states that "[i]t was so cold, it was as if I was outside; even the staff wore their coats and gloves while working on #2 and # 4 gallery." (Doc. 37-2, p. 8).
Plaintiff states that he complained several times between December 8, 2004 and December 28, 2004 to Defendants Smith-Valquez, Waller, and McDaniel, regarding the conditions. (Doc. 37-2, pp. 13-15). He also states that on December 14, 2004 he mailed a grievance to Defendant Reardon (the prisoner counselor serving the Protective Custody Unit) regarding the cold conditions, but received no response. (Doc. 31-2, p. 42 ; Doc. 37-2, p. 14). Plaintiff states that on December 15, 2004 he mailed a grievance letter to Defendant Spiller (a Major acting as Public Service Administrator at the time) regarding the cold, but again received no response. (Doc. 31-2, p. 42; Doc. 37-2, p. 14). That said, in his deposition, Plaintiff testified that Defendants Smith-Vasquez, Waller, and McDaniel referred his complaints about the heating system to maintenance. (Doc. 31-2, p. 40-41). In his affidavit Plaintiff also admits that on December 14, 2004, he observed maintenance personnel doing some sort of work on the heating system. (Doc. 37-2, p. 14). Finally, in his affidavit, Plaintiff avers that he complained to a prison official of the excessive coldness on December 28, 2009 and the next day was moved to a cell in segregation. (Doc. 37-2, p. 15). In his deposition, Plaintiff testified that the segregation cell was heated. (Doc. 31-2, p. 45).
Defendants acknowledge that there was a problem with one circulation fan for one of the two heaters in the North -1 cell block,(Doc. 38-2), but deny that the heating system was ever shut down or inoperable. (Doc. 31-2, pp. 12-15; 20-22; 30-37; Doc 38-2). Defendants also assert that over 30 hours of maintenance was performed on the heating system for the North-1 housing units from October 2004-January 2005 (Doc. 31-2, pp. 30-37). Specifically, Defendant McDaniel submitted a work order on December 2, 2004, which was completed on December 30, 2004. (Doc. 31-2, pp. 13-14). Defendant Smith-Vasquez submitted a work order on December 14, 2004 and that work order was completed on December 20, 2004. (Doc. 31-2, p. 20-21). Both work orders were authorized by Defendant Waller.
Defendants also submit an affidavit by the Acting Stationary Engineer Chief at Menard, which reflects that even if one of the two heaters on the North-1 Protective Custody Unit was not functioning properly, each unit heater has an independent blower that would provide heat for the gallery. (Docs. 38 & 39-2). Further, Menard's centralized boilerhouse produces steam for each individual gallery, including those in the North-1 Protective Custody Uni, and would also heat the gallery. (Docs. 38 & 39-2). Finally, Defendant's point out that Plaintiff testified in his deposition ...